Bikini-clad baristas serve up lesson in free speech

SEATTLE — Amazon, which has made this city the epicenter of a retailing revolution, is not the Northwest’s only commercial disrupter. In the nearby city of Everett, Liberty Ziska and some other bikini baristas, giving new meaning to coffee as a stimulant, have provoked the City Council to pass, unanimously, ordinances requiring baristas to be less nearly naked when they work. The baristas, in turn, have hired a lawyer and made an argument that is germane to current disputes about freedom of speech. Their argument, they might be surprised to learn, is Aristotelian. Sort of.

The police chief and city attorney allege that bikini barista stands attract a clientele that sometimes behaves badly, and that some of the baristas do, too. The city reports “a proliferation of crimes of a sexual nature occurring at bikini barista stands,” which it primly suggests has something to do with “the minimalistic nature of the clothing worn by baristas.” Seattle’s ABC affiliate reports that “in 2014, the owner of Java Juggs pleaded guilty to running a brothel out of several stands.” Henceforth the baristas must wear at least shorts and tank tops. The new dress code cannot be faulted for vagueness. Indeed, it has notable specificity that has the baristas incensed about the examinations and anatomical measurements that law enforcement might require.

What makes this a matter of more than mere ribaldry is that the baristas have unlimbered heavy constitutional artillery. They fire it in ways pertinent to the manner in which freedom of speech is debated and defended — or not — where it is most important and most besieged: on campuses. The baristas say:

The ordinances banning bikinis violate the First Amendment because they are “content-based and viewpoint-based restrictions” that “impermissibly burden and chill” their freedom to “convey their messages of female empowerment, positive body image” and other things. Their bikinis are “a branding message” communicating “approachability and friendliness.” The ordinances regulate only speech “common and fundamental” at bikini barista stands, targeting them “because Everett does not agree with their message” and restricting “channels of communication.” Ziska says that if clothing covers the tattoos on her legs, arms, wrists, back, neck and hips she cannot have such interesting conversations with customers. Brittany Giazzi and Leah Humphrey argue similarly about their piercings and scars, respectively.

Never mind the baristas’ further barrage of allegations in their everything-but-the-kitchen-sink complaint — for example, that the ordinances are “an equal-protection violation” because they target women (“a protected class”) and do not burden men.

Instead, note how strenuously, even imaginatively, Ziska and her co-workers strain to argue teleologically.

In recent lectures at Georgetown and American universities in Washington, D.C., Greg Weiner, an Assumption College political philosopher and frequent contributor to the Library of Law & Liberty website, urged participants in the campus arguments to reason as Aristotle did. That is, to be less deontological (rights-based in their advocacy) and more teleological (ends-based). To argue deontologically is to treat speech as an autonomous good, regardless of its moral or social purpose, if it has one. To argue teleologically is to stress why — for what purpose — we should value speech.

Aristotle — here he was not the baristas’ ally — defined human beings as

language-using creatures, which makes the expressive value of tattoos, piercings, body parts and the like, less than fundamental. The Supreme Court’s First Amendment jurisprudence, Weiner notes, has generally accorded the most robust protection to speech, and speech that is political, broadly defined — concerned with securing the goods of self-government. The fundamental purpose (telos), although not the only purpose, of the right to free speech is to protect a panoply of other rights.

So, the First Amendment rightly protects not just speech but “expression,” and a free society should give generous protection even to expressions that serve no public purpose, but just make the expressing persons happy. But speech about the pursuit of truth, justice and other important public matters — the sort of speech central to academic institutions — merits more rigorous protection than the baristas’ right to display, among much else, their tattoos, piercings and scars.

Everett should have some latitude to balance other public goods against the expressive pleasure and even commercial advantages that Liberty Ziska and her colleagues derive from sartorial minimalism. Universities should protect almost absolute freedom for arguments about politics, classically and properly defined broadly as the subject of how we should live.